Case No. IT-05-87-PT
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Mr. Hans Holthuis
22 March 2006
The Office of the Prosecutor:
Mr. Thomas Hannis
Ms. Christina Moeller
Ms. Carolyn Edgerton
Counsel for the Accused:
Mr. Eugene O’Sullivan and Mr. Slobodan Zecevic
for Mr. Milan Milutinovic
Mr. Toma Fila and Mr. Vladimir Petrovic for Mr. Nikola Sainovic
Mr. Tomislav Visnjic and Mr. Peter Robinson for Mr. Dragoljub Ojdanic
Mr. John Ackerman and Mr. Aleksander Aleksic for Mr. Nebojsa Pavkovic
Mr. Mihaljo Bakrac for Mr. Vladimir Lazarevic
Mr. Theodore Scudder for Mr. Sreten Lukic
III. PRELIMINARY MATTERS
IV. CAN RESPONSIBILITY FOR PARTICIPATION IN A JCE ARISE WHERE THE PHYSICAL PERPETRATOR IS NOT A PARTICIPANT IN THE JCE?
A. Parties’ arguments
V. IS “INDIRECT CO-PERPETRATION” A FORM OF RESPONSIBILITY WITHIN THE JURISDICTION OF THE TRIBUNAL?
A. Parties’ arguments
SEPARATE OPINION OF JUDGE IAIN BONOMY
1. This Trial Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 (“International Tribunal” or “ Tribunal”) is seized of a “Motion to Amend the Indictment”, filed by the Prosecution on 16 August 2005, by which the Prosecution seeks leave to amend the Indictment in Case No. IT-99-37 and the Indictment in Case No. IT-03-70 as proposed in the Proposed Amended Joinder Indictment.1 The Proposed Amended Joinder Indictment would fuse the two Indictments into one.
2. The Trial Chamber is also seized of three preliminary motions challenging jurisdiction, filed by the Accused Dragoljub Ojdanic,2 Milan Milutinovic,3 and Nebojsa Pavkovic,4 respectively, on 7 and 10 October 2005 (“Ojdanic Motion”, “Milutinovic Motion”, “Pavkovic Motion” or, collectively, “Motions Challenging Jurisdiction”) in response to certain allegations in the Proposed Amended Joinder Indictment. Specifically, the three Accused assert, pursuant to Rule 72(A)(i) of the Rules of Procedure and Evidence (“Rules”), that the Tribunal lacks jurisdiction to prosecute them under the form of responsibility deemed “indirect co-perpetration”, as there is no basis for this form of responsibility either in the Statute of the Tribunal or under customary international law. The Accused accordingly request the Chamber to order that the whole of paragraph 22 and the second sentence of paragraph 34 be stricken from the Proposed Amended Joinder Indictment.5 They further request that the Chamber dismiss the charges in the Proposed Amended Joinder Indictment alleging “indirect co-perpetrator” liability.6
3. The Trial Chamber is additionally seized of a second submission by the Accused Ojdanic.7 In this submission, Ojdanic argues that neither the Statute nor customary international law recognise the proposition that an accused may be held responsible for his participation in a joint criminal enterprise (“JCE”) where one or more of the JCE participants use persons outside the JCE to physically perpetrate the crime or crimes which constitute the JCE’s common criminal purpose.8
4. On 8 July 2005, this Trial Chamber issued a decision granting the Prosecution’s motion to join Cases No. IT-99-37-PT and IT-03-70-PT, and ordering the Prosecution to submit a consolidated indictment by 15 August 2005.9 On 16 August 2005, the Prosecution submitted its Motion to Amend the Indictment and appended to it the Proposed Amended Joinder Indictment.10 Thereafter, on 7 and 10 October 2005, the Accused Ojdanic, Milutinovic, and Pavkovic submitted their respective Motions Challenging Jurisdiction in response to the allegations concerning “indirect co-perpetration” in the Proposed Amended Joinder Indictment.11
5. At the Rule 65 ter conference held on 23 August 2005, the Prosecution made the following observations with respect to the allegations concerning “indirect co-perpetration”: (1) the allegations of indirect coperpetration were inserted in the Proposed Amended Joinder Indictment to make it conform with emerging jurisprudence in the Trial Judgement in Prosecutor v. Stakic;12 (2) the Proposed Amended Joinder Indictment charges indirect co-perpetration “as a method of participation in the JCE” and, alternatively, as “a separate mode of criminal participation by acting in concert”; and (3) paragraph 18 of the Proposed Amended Indictment might have been “a little clearer” if the words “and/or” had been inserted between the words “enterprise” and “as”.13
6. By its decision of 18 October 2005, the Trial Chamber denied the Prosecution’s request for an adjournment of the Ojdanic Motion pending the Appeal Judgement in Stakic.14 The Chamber considered that the Prosecution’s introduction of “indirect co-perpetration” as a “new form of liability ” in the Proposed Amended Joinder Indictment constituted “good cause to consider Ojdanic’s Motion Challenging Jurisdiction and Milutinovic’s Motion as being preliminary motions pursuant to Rule 72” of the Rules.15 The Trial Chamber is likewise of the view that, for the same reason, good cause has been shown to consider the Pavkovic Motion.
7. On 21 October 2005, the Prosecution filed a Response (“Prosecution Response”) in which it requests that the Trial Chamber deny the Ojdanic Motion,16 and confirms that it has used the term “indirect co-perpetration” in the Proposed Amended Joinder Indictment “to describe the form of indirect co-perpetration based on joint control as applied in Stakic.”17 The Prosecution contends that indirect co-perpetration as a form of responsibility is either part of customary international law or is a general principle of law,18 and further argues that an accused can be held liable under this theory of liability “if he has an agreement with others, plays a key role in the agreement and one or more participants used others to carry out crimes.”19 On 31 October 2005, the Prosecution submitted a Book of Authorities ostensibly supporting its claim that this form of responsibility exists in customary international law or is a general principle of law.20
8. In an apparent effort to clarify that “indirect co-perpetration” is indeed charged as a separate form of responsibility in the Proposed Amended Joinder Indictment, the Prosecution proposed in a 26 October 2005 Corrigendum to add the words “or otherwise ” after “joint criminal enterprise” and before “as a co-perpetrator” in paragraph 18, as follows:21
18. By using the word “committed” in this indictment, the Prosecutor does not intend to suggest that any of the accused physically perpetrated any of the crimes charged, personally. “Committing” in this indictment, when used in relation to the accused, refers to participation in a joint criminal enterprise, or otherwise as a co-perpetrator, either directly or indirectly.22
9. On 31 October 2005, Ojdanic filed his Reply to the Prosecution Response (“Ojdanic Reply”).23 In the Reply, Ojdanic seeks leave pursuant to Rule 126 bis of the Rules to reply to the Prosecution Response notwithstanding the expiration of the seven-day filing deadline,24 and reiterates his substantive argument that indirect co-perpetration is not a form of responsibility recognised in the Statute of the Tribunal or under customary international law.25 The Accused Milutinovic, for his part, made a submission on 1 November 2005 (“Milutinovic Reply”) stating that he adopts the submissions in the Ojdanic Reply “as his own”, and moves “to dismiss from the proposed Amended Joinder Indictment the form of liability of ‘indirect co-perpetration’.”26
10. On 3 November 2005, the Prosecution filed what it deemed a “Response” to the Ojdanic Reply in which it objected to the request for leave to file the Ojdanic Reply on the ground that it presents new arguments not present in either the Ojdanic Motion or the Prosecution Response.27 The Prosecution contended that, through the assertion that “‘[i]ndirect co-perpetration’ differs from the extended form of JCE by allowing an accused to be held liable for acts of others who are not part of the agreement”,28 the Ojdanic Reply implicitly introduces the brand new argument that “JCE requires that the physical perpetrator be a member” of that JCE.29 In this regard, the Prosecution asserted that JCE liability can arise where the physical perpetrators are not themselves participants in the JCE, and pointed out that paragraph 20 of the Proposed Amended Joinder Indictment pleads JCE liability where the physical perpetrators are not participants in the JCE as an alternative to liability where the physical perpetrators are JCE participants.30
11. On 11 November 2005, the Pre-Trial Judge held a meeting pursuant to Rule 65 ter (I) of the Rules in which the Prosecution reiterated that paragraph 20 of the Proposed Amended Joinder Indictment charges, as one alternative, JCE liability where the physical perpetrators are not participants in the JCE. In response to this confirmation, counsel for the Accused Ojdanic asserted that the Ojdanic Reply does indeed extend the jurisdictional challenge to the proposition that an accused may be held liable for his participation on a JCE where the physical perpetrators are not themselves JCE participants. At the meeting the Pre-Trial Judge expressed the view that, in light of this assertion, the interests of justice might be better served if both challenges—that is, the challenge to the existence of “indirect co-perpetration” in the Statute and under customary international law, and the challenge to the existence of JCE liability where the physical perpetrators are not JCE participants—were considered simultaneously.
12. On 14 November 2005 the Prosecution withdrew its 3 November Response,31 and on 16 November the Trial Chamber, “[c]onsidering that the issues discussed in the Preliminary [Ojdanic] Motion and Prosecution’s Response merit further submissions,” granted Ojdanic’s request pursuant to Rule 127(A) to file the Ojdanic Reply; it also granted leave to the Prosecution to file a sur-reply within seven days.32 The Prosecution filed its Sur-Reply on 23 November 2005, arguing that “General Ojdanic has failed to show that it is a requirement for responsibility on the basis of JCE that the persons who carry out the crimes charged in the indictment be members of the JCE.”33 On 1 December 2005, Ojdanic filed a Notice of New Authority (“Ojdanic Notice of New Authority”) setting forth paragraph 99 of the 30 November 2005 Limaj Trial Judgement as support for his claim that JCE liability cannot ensue where the physical perpetrators are not JCE participants.34
13. Before turning to the main issues raised by the parties, the Trial Chamber will address a number of preliminary matters concerning the methodology to be applied in addressing the parties’ arguments. Paragraph 20 of the Proposed Amended Joinder Indictment reads in relevant part as follows, with emphasis added to the portion claimed by the Prosecution to allege JCE liability where the physical perpetrators are not participants in the JCE:35
20. This joint criminal enterprise came into existence no later than October 1998 and continued throughout the time period when the crimes alleged in Counts 1 to 5 of this indictment occurred …. A number of individuals participated in this joint criminal enterprise during the entire duration of its existence, or, alternatively, at different times during the duration of its existence, including Milan Milutinovic, Nikola Sainovic, Dragoljub Ojdanic, Nebojsa Pavkovic, Vladimir Lazarevic, Vlastimir Djordevic, Sreten Lukic, Slobodan Milosevic and Vlajko Stojiljkovic. Other members included Radomir Markovic, Obrad Stevanovic, Dragan Ilic and unidentified persons who were members of command and coordinating bodies and members of the forces of FRY and Serbia who shared the intent to effect the purpose of the joint criminal enterprise. In addition, and/or in the alternative, Milan Milutinovic, Nikola Sainovic, Dragoljub Ojdanic, Nebojsa Pavkovic, Vladimir Lazarevic, Vlastimir Djordevic, Sreten Lukic, Slobodan Milosevic and Vlajko Stojiljkovic, Radomir, Markovic, Obrad Stevanovic, [and] Dragan Ilic implemented the objectives of the joint criminal enterprise through members of the forces of the FRY and Serbia, whom they controlled, to carry out the crimes charged in this indictment. …36
As discussed above, the Motions Challenging Jurisdiction object to paragraphs 22 and 34 of the Proposed Amended Joinder Indictment on the ground that they introduce a new form of responsibility not recognised in the Statute or in customary international law.37 Paragraphs 21, 22, and 34 read as follows:
21. The crimes enumerated in Counts 1 to 5 of this Indictment were within the object of the joint criminal enterprise and the accused shared the intent with the other co-perpetrators that these crimes be perpetrated. Alternatively, the crimes enumerated in Counts 3 to 5 were natural and foreseeable consequences of the joint criminal enterprise and the accused were aware that such crimes were the possible consequence of the execution of that enterprise. …38
22. In the alternative, the accused are also charged as indirect co-perpetrators, based on their joint control over the criminal conduct of forces of the FRY and Serbia. The accused had the mens rea for the specific crimes charged in this indictment, acted with the mutual awareness of the substantial likelihood that crimes would occur as a direct consequence of the pursuit of the common goal, and were aware of the importance of their own roles.39
34. Each of the accused participated in the joint criminal enterprise in the ways set out (for each accused) in the paragraphs below. Alternatively, each of the accused contributed, as a co-perpetrator based on joint control, to the common goal in the ways set out in those paragraphs. …40
14. It is evident that the combined effect of paragraphs 20, 21, 22, and 34 is to allege liability on three alternative bases: (1) the first category of JCE, as indicated by the allegations that the crimes charged were within the object of the JCE and that the Accused shared the intent to commit them; (2) the third category of JCE, as indicated by the allegations that the crimes charged were natural and foreseeable consequences of the JCE, and that the Accused were aware that such crimes were possible ; and (3) a form of responsibility distinct from JCE—which the Prosecution has deemed “indirect co-perpetration”—that is alleged in paragraph 22 and reflects the physical and mental elements ostensibly set out in paragraphs 440 and 442 of the Stakic Trial Judgement.41 It is also clear that paragraph 20 of the Proposed Amended Joinder Indictment alleges JCE liability, for both the first category and the third category, on the basis of two alternative factual scenarios: (1) where the physical perpetrators were participants in the JCE; and (2) where the participants in the JCE implemented the JCE’s common purpose through non-participants acting under their control.
15. As the Appeals Chamber pointed out in its May 2003 decision on Ojdanic’s Motion Challenging Jurisdiction on the basis of JCE, while the UN Secretary-General’s 1993 Report to the Security Council proposes that the International Tribunal apply, in respect of substantive crimes, rules of international humanitarian law that were “beyond any doubt part of customary international law” at the time of the events in the former Yugoslavia, the Report does not contain any explicit statement limiting the application of forms of responsibility to those existing under customary international law.42 Despite the absence of an explicit limitation in the Secretary-General’s Report, however, the Appeals Chamber in that decision held that, in order to come within the Tribunal’s jurisdiction, any form of responsibility must satisfy four “pre-conditions”:
(i) it must be provided for in the Statute, explicitly or implicitly; (ii) it must have existed under customary international law at the relevant time; (iii) the law providing for that form of liability must have been sufficiently accessible at the relevant time to anyone who acted in such a way; (iv) such person must have been able to foresee that he could be held criminally liable for his actions if apprehended.43
Pre-conditions (iii) and (iv) appear to extend the obligation to apply the principle of nullum crimen sine lege to forms of responsibility.44 In the Trial Chamber’s view, as long as it is clear that the form of responsibility in question existed in customary international law at the time of the commission of the substantive crime, a conviction pursuant to that form of responsibility necessarily complies with nullum crimen sine lege;45 as a consequence, pre-conditions (iii) and (iv) are absorbed into the analysis of whether pre-condition (ii) exists. This conclusion comports with that of the Appeals Chamber in its July 2003 decision on command responsibility, which endorsed the four pre-conditions of the May 2003 decision on JCE and held as follows:
In considering the issue of whether command responsibility exists in relation to crimes committed by a subordinate prior to an accused’s assumption of command over that subordinate, the Appeals Chamber observes that it has always been the approach of this Tribunal not to rely merely on a construction of the Statute to establish the applicable law on criminal responsibility, but to ascertain the state of customary law in force at the time the crimes were committed.46
The Trial Chamber accordingly holds that the determination of whether the jurisdiction of the International Tribunal extends to a purported form of responsibility is twofold : (1) the form of responsibility “must be provided for in the Statute, explicitly or implicitly”; and (2) the form of responsibility “must have existed under customary international law at the relevant time”.47
16. As a final preliminary matter, the Trial Chamber holds that the submission in the Ojdanic Reply to the effect that “[t]he prosecution bears the burden of showing that its ‘indirect co-perpetration’ form of liability existed in customary international law in 1999”48 is unfounded. Ojdanic’s jurisdictional challenges are matters of law to be determined by the Trial Chamber, not matters of fact that one of the parties bears the burden of proving, although the Chamber may of course be assisted by submissions made by the parties in its evaluation of the challenges.
17. In the Trial Chamber’s view, Ojdanic’s jurisdictional challenges, as set forth in the Motions Challenging Jurisdiction and in the Ojdanic Reply, can be addressed by examining two questions. First, can responsibility for participation in a JCE arise where the physical perpetrator of the charged crime is not a participant in the JCE? Second, do the Statute of the Tribunal and customary international law, as applicable at the time of the events charged in the Proposed Amended Joinder Indictment, provide for the form of responsibility alleged in paragraph 22 of the Proposed Amended Joinder Indictment, which the Prosecution has deemed “indirect co-perpetration”? The Chamber will now consider each of these questions in turn.
18. Ojdanic contends that, in both the Tribunal’s jurisprudence and under customary international law, responsibility cannot ensue for participation in a JCE where the crimes in question are physically perpetrated by persons who are not themselves participants in the JCE.49 In support of this contention, he invokes jurisprudential support in the form of two Trial Judgements and an Appeal decision. The first Trial Judgement is Brdjanin, paragraph 344 of which is quoted in the Ojdanic Reply:50
The Prosecution did not allege that the Accused physically perpetrated any of the crimes charged in the Indictment. Therefore, in order to hold the Accused criminally responsible for the crimes charged in the Indictment pursuant to the first category of JCE, the Prosecution must, inter alia, establish that between the person physically committing a crime and the Accused, there was an understanding or an agreement to commit that particular crime. In order to hold him responsible pursuant to the third category of JCE, the Prosecution must prove that the Accused entered into an agreement with a person to commit a particular crime … and that this same person physically committed another crime, which was a natural and foreseeable consequence of the execution of the crime agreed upon.51
The second Trial Judgement is Limaj, invoked in Ojdanic’s Notice of New Authority of 1 December 200552 and providing, in footnote 2264, as follows:
In its rulings concerning joint criminal enterprise the Appeals Chamber referred to crimes committed “by one or more [participants in the common design]” and “other members of the group”, thereby making it clear that only crimes committed by one or more participants in such an enterprise may give rise to liability of other participants ….53
The Appeal decision relied upon is Rwamakuba.54 In that decision the Appeals Chamber, in the course of establishing that JCE liability may ensue in respect of the crime of genocide, remarked that “it is clear that the post-World War II judgements discussed above find criminal responsibility for genocidal acts that are physically committed by other persons with whom the accused are engaged in a common criminal purpose.”55
19. The Prosecution responds that the Tribunal’s appellate jurisprudence does not expound, as a prerequisite for JCE liability, an element that the physical perpetrator be a participant in the JCE.56 It further asserts that the manner in which Chambers have applied the elements of JCE to the facts of specific cases shows that there is no such requirement. According to the Prosecution, although in certain Trial Judgements—such as those in Simic and Deronjic—the physical perpetrators happened to be among the participants in the JCE, no Judgement states that participation of the physical perpetrators is required,57 and the Krstic Trial Judgement imposed JCE liability on the accused Krstic for crimes physically perpetrated by non-JCE participants.58
20. The Prosecution additionally argues that customary international law recognised, at the time of the events alleged in the Second Amended Joinder Indictment, the imposition of JCE liability on an accused where the physical perpetrator of the crime with which the accused is charged was not a participant in the JCE. In the Prosecution’s contention, post-World War II jurisprudence pursuant to Control Council Law No. 10 imposed co-perpetrator liability—as opposed to liability for aiding and abetting—on “defendants on a senior hierarchical level mostly without referring to the individuals who carried out the actus reus of the crime.”59 The Prosecution gives the specific example of the accused Rothaug in the so-called Justice case:60 the United States Military Tribunal found that Rothaug had participated in the national programme of racial persecution and that, as a judge, he had presided over sham trials which resulted in a number of “undesirable” people being put to death. The Military Tribunal accordingly convicted Rothaug of crimes against humanity and sentenced him to life imprisonment, but made no mention whatsoever of the persons who actually carried out the executions or whether they espoused the same plan as Rothaug.61
21. The Prosecution gives an example of what it considers would be the “absurd result ” if the Trial Chamber were to limit JCE liability to instances in which the physical perpetrator is a participant in the JCE: where X and Y come to an agreement to kill all the inhabitants of a village, and Y uses a weapon of mass destruction to destroy the village, then X would bear responsibility, but where Y orders troops under his command to do the killings, then X “can at the most be an aider and abettor”.62
22. Beginning with the Judgement in Tadic, the Appeals Chamber has repeatedly held that JCE existed as a form of responsibility in customary international law at the time of the events in the former Yugoslavia, and is implicitly encompassed under the label “committing” in Article 7(1) of the Statute of the International Tribunal.63 According to the Tadic Appeals Chamber,
[t]his provision covers first and foremost the physical perpetration of a crime by the offender himself, or the culpable omission of an act that was mandated by a rule of criminal law. However, the commission of one of the crimes envisaged in Articles 2, 3, 4 or 5 of the Statute might also occur through participation in the realisation of a common design or purpose.64
The Appeals Chamber stated the rationale behind JCE liability as follows:
[T]o hold criminally liable as a perpetrator only the person who materially performs the criminal act would disregard the role as co-perpetrators of all those who in some way made it possible for the perpetrator physically to carry out that criminal act. At the same time, depending upon the circumstances, to hold the latter liable only as aiders and abettors might understate the degree of their criminal responsibility.65
Tadic and subsequent Trial and Appeal Judgements make it clear that, to be held responsible for a crime committed pursuant to a JCE, the accused need merely have participated in the common plan, design, or purpose at the core of the JCE, and he need not have performed any part of the actus reus of the perpetrated crime.66
23. As is evident from the Appeals Chamber’s May 2003 Ojdanic decision, an accused’s contention that a form of responsibility does not exist in the Tribunal’s jurisprudence or in customary international law is properly characterised as a motion challenging jurisdiction under Rule 72(D)(iv),67 and may therefore be brought as a preliminary motion during the pre-trial phase of proceedings pursuant to Rule 72(A)(i).68 Yet although his submissions are critical of the jurisprudence recognising JCE as a form of responsibility, it is clear that Ojdanic accepts that JCE is now an established form of responsibility before the Tribunal. In other words, he accepts that the Tribunal has jurisdiction to find an accused guilty of the commission of a crime as the result of his participation in a JCE. His challenge is a much narrower one, and amounts to no more than a claim that the concept of JCE does not extend to circumstances in which the commission of a crime is said to have been effected through the hands of others whose mens rea is not explored and determined, and who are not shown to be participants in the JCE. In the Trial Chamber’s view, that question does not raise the issue of the Tribunal’s jurisdiction over the activities of a JCE, but instead relates to the contours of JCE responsibility. Like challenges relating to the contours of a substantive crime,69 challenges concerning the contours of a form of responsibility are matters to be addressed at trial.70 The question at trial in relation to Ojdanic and each of his co-Accused—all of whom are alleged to be participants in the JCE—will be whether it is proved that each committed crimes through participation in the JCE. The Trial Chamber will have to decide, applying the law to the evidence in the case, whether JCE liability has been established for each Accused.
24. Ojdanic’s objection to the second alternative in paragraph 20 of the Proposed Amended Joinder Indictment—that is, that the Accused and their fellow JCE participants “ implemented the objectives of the joint criminal enterprise through members of the forces of the FRY and Serbia, whom they controlled, to carry out the crimes charged ”71—is accordingly dismissed.
25. Ojdanic contends that “indirect co-perpetration”, as alleged in paragraph 22 of the Proposed Amended Joinder Indictment, does not fall within the jurisdiction of the Tribunal.72 The Trial Chamber recalls its holding in paragraph 15 above that, in order to come within the Tribunal’s jurisdiction, any form of responsibility “must be provided for in the Statute, explicitly or implicitly”, and “must have existed under customary international law at the relevant time”.73 If either of these two prerequisites is not fulfilled in respect of a purported form of responsibility, the Tribunal has no jurisdiction to determine an accused’s guilt pursuant to that form. The Chamber will examine below whether “indirect co-perpetration” fulfils either prerequisite.
26. The Trial Chamber stresses at the outset that the question before it is quite narrow. The Prosecution has charged the Accused in paragraph 22 with responsibility through a form of responsibility with specific physical and mental elements:
22. In the alternative, the accused are also charged as indirect co-perpetrators, based on their joint control over the criminal conduct of forces of the FRY and Serbia. The accused had the mens rea for the specific crimes charged in this indictment, acted with the mutual awareness of the substantial likelihood that crimes would occur as a direct consequence of the pursuit of the common goal, and were aware of the importance of their own roles.74
As paragraph 22 reflects the only “new” form of responsibility through which the Accused are charged with the alleged substantive crimes, the Trial Chamber will not perform an exhaustive investigation of all the available sources in order to ascertain what forms of responsibility exist in customary international law that might arguably be given the label “indirect co-perpetration” and fall within Article 7(1) of the Statute. Instead, the Chamber will limit its analysis to the more focused questions of whether a form of responsibility with the physical and mental elements alleged in paragraph 22 existed under customary international law at the time of the events alleged in the Proposed Amended Joinder Indictment, and whether this form of responsibility is provided for in the Statute.
27. Ojdanic asserts that “the concept of ‘indirect co-perpetration’ represents a new, separate, and broader form of liability from those heretofore found in the Statute ”.75 He argues that, had the Security Council wanted to establish indirect co-perpetration as a form of responsibility under Article 7(1), it could have done so explicitly, as it did with aiding and abetting, conspiracy to commit genocide, and complicity in genocide;76 moreover, aiding and abetting, conspiracy to commit genocide, and complicity in genocide “adequately cover the situation where a person acts in concert with others in the commission of a crime.”77 According to Ojdanic, this form of responsibility is a “dramatic expansion of individual liability under Article 7(1)” because “an accused would be liable for the acts of all persons who carried out crimes which were foreseeable.”78
28. Ojdanic submits that, even if the Trial Chamber were to hold that “indirect co-perpetration ” is implied within the notion of “committing” in Article 7(1) of the Statute, the Tribunal still lacks jurisdiction to hold an accused liable through that form of responsibility since it did not exist in customary international law at the time of the events alleged in the Proposed Amended Joinder Indictment.79 He contends that there is insufficient opinio juris in respect of indirect co-perpetration, and this deficiency becomes evident upon examination of certain cases decided under Control Council Law No. 10, such as the Justice case. The accused in the Justice case “were judged on their personal ‘participation’ and not on their relationships with other perpetrators”, and “[h]ad the judges in the Justice case employed the concept of indirect co-perpetration there would have been no acquittals of members of the notorious SS.”80 The accused Altstoetter and Cuhorst were found not guilty of war crimes and crimes against humanity in spite of their agreement with the overall criminal objectives of Hitler and the SS to discriminate against Jews and Poles; according to Ojdanic, had the United States Military Tribunal applied indirect co-perpetration as a form of responsibility, “they would have been ‘indirect co-perpetrators’ for all crimes committed by any other persons acting in furtherance of these objectives.”81 Ojdanic asserts in a similar vein that the officers of the Lebensborn in the so- called RuSHA case, who were acquitted despite being members of the SS, would have been responsible for all crimes committed by others acting in furtherance of Hitler’s objectives had the Military Tribunal applied indirect co-perpetration.82
29. As support for his argument that state practice did not exist at the relevant time to substantiate the existence of indirect co-perpetration under customary international law, Ojdanic cites passages from treatises which, he claims, establish that Article 25(3)(a) of the Rome Statute of the International Criminal Court (“ICC”)—which appears to enshrine the notion of “indirect perpetration”, as opposed to “indirect co-perpetration ”—goes beyond established state practice.83 Ojdanic stresses further that the Stakic Trial Judgement does not cite a single case in which the concept of “co-perpetration” has been applied in international criminal law.84
30. The Prosecution responds that, under the Statute and in the jurisprudence of the International Tribunal, “there are ways to link a crime to a JCE short of requiring that the physical perpetrator be part of that JCE [and] [i]ndirect perpetration is one of them.”85 As support for this contention, the Prosecution relies mainly on paragraph 439 of the Stakic Trial Judgement which, in its submission, recognises indirect co-perpetration as a form of “commission” under Article 7(1) of the Statute.86 In paragraph 439 the Stakic Chamber states that it “prefers to define ‘committing’ as meaning that the accused participated, physically or otherwise directly or indirectly, in the material elements of the crime charged through positive acts or, based on a duty to act, omissions, whether individually or jointly with others.”87 After the word “indirectly”, a footnote reference appears and the footnote contains the following text, apparently setting forth the Stakic Chamber’s explanation of what it means by “participated … indirectly”: “Indirect participation in German Law (mittelbare Täterschaft ) or the ‘perpetrator behind the perpetrator’; terms normally used in the context of white collar crime or other forms of organised crimeS.C”88
31. The Prosecution argues further that “[t]he [Ojdanic] Motion should be dismissed because indirect co-perpetration is part of customary international law or a general principle of law.”89 It contends that, contrary to Ojdanic’s claims, some of the accused in the Justice and RuSHA cases were indeed convicted of crimes they did not physically commit; the accused Rothaug, for example, was found guilty of crimes against humanity even though he did not himself kill anyone.90 Moreover, according to the Prosecution, indirect perpetration is recognised in the instruments setting forth the law to be applied in the East Timor Special Panels and the Iraqi Special Tribunal;91 furthermore, the mere fact that the Rome Statute of the ICC enshrines indirect perpetration “does not mean that the concept did not previously exist in international law”,92 especially since inclusion of the concept in Article 25(3)(a) of the Rome Statute did not generate significant debate.93 The Prosecution makes the additional claim that most civil- and common-law jurisdictions recognise indirect perpetration in one form or another,94 and that “the core concepts of indirect perpetration can be found worldwide”.95
32. The International Court of Justice described the process by which a rule of customary international law comes into existence in the following terms:
Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the essence of a rule requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis.96
The Appeals Chamber has affirmed for the International Tribunal that, “to hold that a principle was part of customary international law, [a Chamber] has to be satisfied that State practice recognized the principle on the basis of supporting opinio juris.”97
33. Article 7(1) of the Statute contemplates various forms of individual criminal responsibility applicable to all crimes within the Tribunal’s jurisdiction:98
A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.99
In the Proposed Amended Joinder Indictment, the Prosecution does not allege that any of the Accused physically perpetrated any of the crimes charged. In the 26 October 2005 Corrigendum, the Prosecution proposes the following definition of the term “committed” for purposes of the Proposed Amended Joinder Indictment:
18. By using the word “committed” in this indictment, the Prosecutor does not intend to suggest that any of the accused physically perpetrated any of the crimes charged, personally. “Committing” in this indictment, when used in relation to the accused, refers to participation in a joint criminal enterprise, or otherwise as a co-perpetrator, either directly or indirectly.100
It is apparent, therefore, that the Prosecution charges “indirect co-perpetration ” as a form of “commission” pursuant to Article 7(1) of the Statute.
34. The Trial Chamber in Stakic began its discussion of commission liability under Article 7(1) by reproducing the four pre-conditions that, according to the Appeals Chamber’s May 2003 Ojdanic decision, must be fulfilled in order for a form of responsibility to come within the Tribunal’s jurisdiction.101 The Stakic Chamber acknowledged the Appeals Chamber’s holding that JCE constitutes a form of commission pursuant to Article 7(1) of the Statute,102 but asserted that “joint criminal enterprise is only one of several possible interpretations of the term ‘commission’ under Article 7(1) of the Statute and … other definitions of co-perpetration must equally be taken into account.”103 Holding that “a more direct reference to ‘commission’ in its traditional sense should be given priority before considering responsibility under the judicial term ‘joint criminal enterprise’”,104 the Chamber discussed an example of a “more direct reference to ‘commission’” that it deemed “co-perpetration”:105
440. … For co-perpetration it suffices that there was an explicit agreement or silent consent to reach a common goal by coordinated co-operation and joint control over the criminal conduct. For this kind of co-perpetration it is typical, but not mandatory, that one perpetrator possesses skills or authority which the other perpetrator does not. These can be described as shared acts which when brought together achieve the shared goal based on the same degree of control over the execution of the common acts. In the words of Roxin: “The co-perpetrator can achieve nothing on his own[.]… The plan only ‘works’ if the accomplice works with the other person.” Both perpetrators are thus in the same position. As Roxin explains, “they can only realise their plan insofar as they act together, but each individually can ruin the whole plan if he does not carry out his part. To this extent he is in control of the act.” Roxin goes on to say, “[t]his type of ‘key position’ of each co-perpetrator describes precisely the structure of joint control over the act.” Finally, he provides the following very typical example:
If two people govern a country together—are joint rulers in the literal sense of the word—the usual consequence is that the acts of each depend on the co-perpetration of the other. The reverse side of this is, inevitably, the fact that by refusing to participate, each person individually can frustrate the action.106
35. In paragraph 441, the Stakic Chamber then expressed its awareness that “the end result of its definition of co-perpetration approaches that of the aforementioned joint criminal enterprise and even overlaps in part”, but nevertheless maintained that “this definition is closer to what most legal systems understand as ‘committing’ and avoids the misleading impression that a new crime not foreseen in the Statute of this Tribunal has been introduced through the backdoor.”107 After the words “new crime”, a footnote reference appears and the footnote contains the following text: “E.g. ‘membership in a criminal organization’.”108
36. The Stakic Chamber refers in paragraph 441 to “its definition of co-perpetration ”.109 This definition appears to be the sentence in paragraph 440 which reads that “[f]or co-perpetration it suffices that there was an explicit agreement or silent consent to reach a common goal by coordinated co-operation and joint control over the criminal conduct”,110 and this is the language used in paragraph 22 of the Proposed Amended Joinder Indictment. Instead of analysing the sources from which it derived this language, however, Stakic proceeds immediately to a discussion of Claus Roxin’s definition of co-perpetration, in which two people work together in the commission of a crime, and the successful execution of the criminal plan is totally dependent on each person carrying out his part.111
37. In this Trial Chamber’s view, Roxin’s rather different conception of co-perpetration as discussed in Stakic does not support the assertion that “[f]or co-perpetration it suffices that there was an explicit agreement or silent consent to reach a common goal by coordinated co-operation and joint control over the criminal conduct”.112 Furthermore, neither Roxin nor paragraph 440 of Stakic provide any support whatsoever for the Prosecution’s view that “[t]he accused is liable under a theory of indirect co-perpetration if he has an agreement with others, plays a key role in the agreement and one or more of the participants used others to carry out the crimes.”113 It is particularly noteworthy that neither source makes mention of the use by one of the participants of persons outside the agreement to physically perpetrate crimes.
38. Citing no authority, paragraph 442 of Stakic appears to set forth that Chamber’s view of what constitutes the mental elements of “co-perpetration”:
442. In respect of the mens rea, the Trial Chamber re-emphasises that modes of liability can not change or replace elements of crimes defined in the Statute and that the accused must also have acted in the awareness of the substantial likelihood that punishable conduct would occur as a consequence of coordinated co-operation based on the same degree of control over the execution of common acts. Furthermore, the accused must be aware that his own role is essential for the achievement of the common goal.114
This Trial Chamber observes that the language “awareness of the substantial likelihood that punishable conduct would occur” is very similar to the “indirect intent” mental element for “planning”, “instigating”, and “ordering” in appellate jurisprudence.115 The Appeals Chamber has affirmed that an accused charged with planning, instigating, or ordering may be held liable if he intended that a crime be committed as a result of his conduct, or if he was aware of the substantial likelihood that a crime would be committed.116 It would appear that the Stakic Chamber relied on this jurisprudence, and not on sources of customary international law actually defining and applying some conception of “co-perpetration”, to arrive at the language in paragraph 442.
39. The Trial Chamber acknowledges the possibility that some species of co-perpetration and indirect perpetration can be found in various legal systems throughout the world. Nevertheless, as mandated by the Appeals Chamber,117 the task before the Trial Chamber is not to determine whether co-perpetration or indirect perpetration are general principles of law, but instead to determine whether the form of responsibility alleged in paragraph 22 of the Proposed Amended Joinder Indictment existed in customary international law at the relevant time. Consequently, even if Roxin or other authorities did provide clear evidence that the very specific definition of co-perpetration in paragraphs 440 and 442 of Stakic exists in German or other national law, such evidence would not support a conclusion that there is state practice and opinio juris demonstrating the existence of the Stakic definition in customary international law. Neither Stakic nor the Prosecution has cited any authority that convincingly establishes state practice or opinio juris for the Stakic definition.
40. For these reasons, the Trial Chamber holds that the form of responsibility set forth in paragraph 22 of the Proposed Amended Joinder Indictment did not exist in customary international law at the time of the events alleged in the Indictment. The Chamber recalls its observation in paragraph 25 above that, if either of the two prerequisites derived from the Appeals Chamber’s May 2003 Ojdanic decision is not fulfilled in respect of a purported form of responsibility,118 the Tribunal has no jurisdiction to determine an accused’s guilt pursuant to that form. Accordingly, the Chamber will not engage in an examination of whether the Statute would be broad enough to encompass “indirect co-perpetration” if such a form of responsibility did exist in custom.
41. The Chamber concludes that the Tribunal lacks jurisdiction over the form of responsibility alleged in paragraph 22 of the Proposed Amended Joinder Indictment, and Ojdanic’s jurisdictional challenge is upheld in this respect.
For the reasons discussed above, pursuant to Rules 47, 50, 72, 126 bis, and 127 of the Rules, the Trial Chamber hereby ORDERS as follows:
(a) The Accused Milutinovic is GRANTED leave to file the late Milutinovic Reply.119
(b) The Accused Ojdanic is GRANTED leave to file the Ojdanic Notice of New Authority.
(c) The Motions Challenging Jurisdiction are GRANTED in part, and the Prosecution is ORDERED to (i) strike paragraph 22 of the Proposed Amended Joinder Indictment ; and (ii) strike the second sentence of paragraph 34 of the Proposed Amended Joinder Indictment.
The Motions Challenging Jurisdiction are denied in all other respects.
Done in English and French, the English text being authoritative.
A separate opinion by Judge Bonomy is appended to this Decision.
Dated this twenty-second day of March 2006
At The Hague
[Seal of the Tribunal]
1. As party to the Decision I agree entirely with the Disposition and the reasoning leading thereto. In relation to the first matter—that is, whether individual criminal responsibility can arise in respect of participation in a JCE where the physical perpetrator of a crime is not proved to be a participant in the JCE—I wish to express some additional thoughts on how that scenario might arise in fact and whether it could arise in law. The starting point for me is that the question at trial, in relation to any accused who is said to be a member of a JCE, is whether it is proved that he “committed” a crime through participation in the JCE. The emphasis is on the individual criminal responsibility of the participant.
2. I look first of all at possible factual scenarios and then reflect on the law under three headings, namely, Tribunal Jurisprudence, International Case Law and General Principles of Criminal Law.
3. Factual scenarios in cases before the Tribunal are rarely such that all persons involved in the perpetration of crimes pursuant to a JCE can be found to be participants in that particular JCE. Non-participants may execute the JCE’s common purpose in response to orders or some other inducement of the accused or his fellow participants. In their submissions the Prosecution has drawn attention to the “absurd result ”, as they describe it, of limiting JCE liability to instances in which the physical perpetrator is a participant. The example they posit is of X and Y coming to an agreement to kill all the inhabitants of a village: were Y to use a weapon of mass destruction, then X would bear responsibility; on the other hand, were Y to order troops under his command to carry out the killings, then X could at most be an aider and abetter.120
4. A better example might be the following. A colonel and a general in the police agree to wipe out a village and its inhabitants. It is left to the general to decide on the precise means, whether they be his own personnel, a group of paramilitaries, shelling by him personally, or one massive bombing that he and another plant and set. The examples are almost infinite. The colonel has to set up roadblocks to ensure that the villagers are at home when the attack is undertaken. Those blocking the roads think that they are acting legitimately in the preservation of security. The general decides to order men under his command to attack the village, and the inhabitants who remain are murdered. Those who assist the general believe they are acting in the course of an ongoing combat and that the village is a terrorist stronghold. Only the general and the colonel have it in mind that this will be a good way to terrorise the local population into leaving the country. The colonel cannot “order ” the general. If it was the general’s idea, the colonel cannot have instigated or planned it. He may be an aider or abetter, but does that adequately reflect the level of his responsibility? Common sense might suggest that the general and colonel committed the atrocity in concert with one another, and that their responsibility for “committing” the crime could be established without a determination being made about the criminal responsibility of those acting under their command.
5. Most Judgements of the Tribunal dealing with JCE proceed on the basis that the physical perpetrator is, or would be, a participant in the JCE. However, the point is generally assumed rather than specifically addressed. In only one Trial Judgement—Brdjanin —has this issue been specifically dealt with and a decision made on the basis of a rule that the physical perpetrator must be a participant in the JCE. On the other hand, in one other Trial Judgement—Krstic—such a requirement is not mentioned at all.
6. As acknowledged in paragraph 22 of the Trial Chamber’s Decision, the jurisprudence has consistently held that, to incur responsibility for a crime committed pursuant to a JCE, an accused need merely have participated in the common plan, design, or purpose at the core of the JCE, and he need not have performed any part of the actus reus of the perpetrated crime.121 Nonetheless, Tadic did not take an unambiguous position on whether the person who does perform the actus reus must himself have participated in the common plan, design, or purpose. In its initial discussion of the elements of the first and second categories of JCE in paragraphs 196122 and 203,123 respectively, as well as its final discussion of the physical elements of all three categories in paragraph 227,124 the Appeals Chamber did not specify a requirement that the physical perpetrator be a participant in the JCE. On the other hand, in its initial discussion of the elements of the third category in paragraph 204,125 in the summary of the elements of the first and third categories in paragraph 220,126 and in the re-articulation of the mental element of the third category in paragraph 228,127 the Appeals Chamber did recognise —at least as regards the first and third categories—a requirement that the physical perpetrator be a JCE participant.
7. In any consideration of Tadic it is important to bear the specific facts of the case in mind. The JCE comprised a small group of active participants.128 The sort of situation envisaged in the present Indictment, and indeed in the factual scenario detailed above in paragraph 4, are far removed from the circumstances in Tadic. There was no reason for the Chamber to address the broader and more complex factual situations that arise in this Indictment. It is also important not to overstate the import of the authorities on which the Tadic Appeal Judgement relied. Although the Prosecution submits in its Sur-Reply that “[t]he World War II cases considered by the Appeals Chamber in the Tadic Appeal Judgement concerned factual scenarios where the physical perpetrators were members of the JCE,”129 it is far from clear to me that in every case cited by Tadic participation of the physical perpetrator in the JCE was a sine qua non for the imputation of liability to the accused.130
8. Moreover, although many subsequent Judgements have employed the Tadic language in setting out the elements of JCE, and therefore appear to restrict JCE liability —at least in the third category—to crimes physically perpetrated by JCE participants,131 in almost all of these Judgements the JCE was, like the enterprise in Tadic, relatively small. The fact that some of the physical perpetrators may not have been JCE participants does not appear to have been much of an issue. That is understandable, since considerations of both justice and common sense would suggest that concentration should be upon the responsibility of the JCE participants, and that such a requirement is superfluous. I accordingly consider that these cases do not give decisive guidance as to whether the Tribunal’s jurisprudence requires that the physical perpetrator be a participant in the JCE.
9. The factual position in Brdjanin was somewhat closer to the sorts of situations that can be envisaged in the present case. The indictment alleged that Brdjanin had taken part in a JCE, the criminal object of which was the removal of the Bosnian Muslim and Bosnian Croat inhabitants from the territory of a planned Serb State. The Prosecutor averred that Brdjanin’s fellow JCE participants included
[a] great many individuals … including … Momir Talic, other members of the ARK Crisis Staff, the leadership of the SerBiH and the SDS, including Radovan Karadzic, Momcilo Krajisnik and Biljana Plavsic, members of the Assembly of the Autonomous Region of Krajina and the Assembly’s Executive Committee, the Serb Crisis staffs of the ARK municipalities, the army of the Republika Srpska, Bosnian Serb paramilitary forces and others.132
The Trial Chamber went on to say:
[I]n order to hold the Accused criminally responsible for the crimes charged in the Indictment pursuant to the first category of JCE, the Prosecution must, inter alia, establish that between the person physically committing a crime and the Accused, there was an understanding or an agreement to commit that particular crime. In order to hold him responsible pursuant to the third category of JCE, the Prosecution must prove that the Accused entered into an agreement with a person to commit a particular crime (in the present case the crimes of deportation and/ or forcible transfer) and that this same person physically committed another crime, which was a natural and foreseeable consequence of the execution of the crime agreed upon.133
In the end the Trial Chamber found that the evidence did not show that any of the crimes alleged in the indictment had been physically perpetrated by Brdjanin or his alleged JCE co-participants in leadership positions,134 and that the existence of the requisite agreement between Brdjanin and the lower- ranking physical perpetrators had not been proved.135
10. It seems to me distinctly possible that the Trial Chamber took this line because of the particular circumstances of the case. The Chamber appears to have been—in my opinion quite rightly—concerned that it would be inappropriate to impose liability on an Accused where the link between him and those who physically perpetrated the crimes with which he is charged is too attenuated. Indeed, it is not at all clear that, even if the Trial Chamber had taken a different view on the point, they would have found Brdjanin guilty of commission through participation in a JCE, on account of the absence of a direct or close connection between him and the physical perpetrators. In the examples discussed in paragraph 4 above, by contrast, the link between the accused participant in the JCE and the physical perpetrators is a close and direct one. The case against Ojdanic and his co-Accused is thus quite different on its facts from Brdjanin and for that reason distinguishable. The Prosecution’s appeal in respect of the findings in Brdjanin is currently pending before the Appeals Chamber.136
11. The position of Brdjanin is to be contrasted with the approach of the Trial Chamber in Krstic. There the Trial Chamber made no mention of a requirement that the physical perpetrator should be a member of the JCE.137 The Chamber then proceeded in paragraph 617 to find the accused guilty of inhumane acts and persecution as crimes against humanity for his participation in a JCE, formulated between him and other high-ranking Bosnian Serb political and military leaders, to forcibly transfer Muslim women, children, and elderly out of Potocari.138 In paragraph 645 the Chamber similarly found him guilty of genocide for his participation in a JCE, formulated among the same persons, with the object of killing all the military-aged Bosnian Muslim men of Srebrenica.139 In both instances the physical perpetrators appear to have been foot-soldiers and other low-ranking members of the Drina Corps of the Bosnian Serb Army.
12. Ojdanic invokes the recent Trial Judgement in Limaj as jurisprudential support for his contention that JCE liability cannot ensue where the physical perpetrator is not a JCE participant.140 In footnote 2264, Limaj held as follows:
In its rulings concerning joint criminal enterprise the Appeals Chamber referred to crimes committed “by one or more [participants in the common design]” and “other members of the group”, thereby making it clear that only crimes committed by one or more participants in such an enterprise may give rise to liability of other participants[.]141
However, while the Trial Chamber dismissed JCE as a possible form of responsibility through which to attribute guilt to the accused, it did so on the ground that there was no evidence that a joint criminal enterprise existed at all, and not on the ground that the accused were not participants in it.142 The point we have to address was not in issue. Moreover, the appellate case law cited in footnote 2264 does not, in my opinion, provide clear support for the Limaj Chamber’s proposition.143
13. The foregoing review has led me to conclude that it is not inconsistent with the jurisprudence of the Tribunal for a participant in a JCE to be found guilty of commission where the crime is perpetrated by a person or persons who simply act as an instrument of the JCE, and who are not shown to be participants in the JCE. There is certainly no binding decision of the Appeals Chamber that would prevent the Trial Chamber from finding an accused guilty on that basis.
14. The Trial Chamber in Kupreskic made the following remarks concerning the value to be given to judicial decisions of other international courts and tribunals in determining whether state practice and opinio juris support the existence of a given rule of customary international law:
[J]udicial decisions may prove to be of invaluable importance for the determination of existing law. … It cannot be gainsaid that great value ought to be attached to decisions of such international criminal courts as the international tribunals of Nuremberg or Tokyo, or to national courts operating by virtue, and on the strength, of Control Council Law no. 10, a legislative act jointly passed in 1945 by the four Occupying Powers and thus reflecting international agreement among the Great Powers on the law applicable to international crimes and the jurisdiction of the courts called upon to rule on those crimes. These courts operated under international instruments laying down provisions that were either declaratory of existing law or which had been gradually transformed into customary international law.144
As regards the Appeals Chamber’s reliance on international judicial decisions for evidence of the existence of a customary rule, the Appeals Chamber in Rwamakuba observed that,
[i]n concluding that customary international law permitted a conviction for, inter alia, a crime against humanity through participation in a joint criminal enterprise, the Tadic Appeals Judgement held that the recognition of that mode of liability in prosecutions for crimes against humanity and war crimes following World War II constituted evidence of these components. The ICTY Appeals Chamber has placed similar reliance in other cases on proceedings held following World War II, including the proceedings before the International Military Tribunal and before tribunals operating under Allied Control Council Law No. 10 …, as indicative of principles of customary international law at that time.145
The Chamber then proceeded to rely again on these same sources—including the Justice and RuSHA Judgements adjudicated on the basis of Control Council Law No. 10—to reach the conclusion that, as of 1992, customary international law permitted the imposition of criminal liability on a participant in a common plan to commit genocide.146 In similar fashion, when determining that customary international law does not allow the imposition of liability upon a commander for his failure to prevent or punish crimes committed by subordinates before he assumed command, the Appeals Chamber invoked as support the holding of the Judgement in the Hostage case, also decided pursuant to Control Council Law No. 10.147
15. In my opinion, the Justice and RuSHA Judgements both appear to involve findings of guilt for participation in a JCE without consideration being given to the criminal responsibility of the physical perpetrators. Control Council Law No. 10 sets out the applicable forms of responsibility in relevant part as follows :
Any person … is deemed to have committed a crime as defined in paragraph 1 of this Article, if he was (a) a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission[.]148
16. In the Justice case the accused Lautz and Rothaug were charged with war crimes and crimes against humanity in the following terms:
11. The German criminal laws, through a series of expansions and perversions by the Ministry of Justice, finally embraced passive defeatism, petty misdemeanors and trivial private utterances as treasonable for the purpose of exterminating Jews or other nationals of the occupied countries. Indictments, trials and convictions were transparent devices for a system of murderous extermination, and death became the routine penalty. … Non-German nationals were convicted of and executed for “ high treason” allegedly committed against the Reich. The above-described proceedings resulted in the murder, torture, unlawful imprisonment, and ill-treatment of thousands of persons. The defendants … Lautz [and] Rothaug … are charged with special responsibility for and participation in these crimes.149
23. The German criminal laws through a series of additions, expansions, and perversions by the defendants became a powerful weapon for the subjugation of the German people and for the extermination of certain nationals of the occupied countries. This program resulted in the murder, torture, illegal imprisonment, and ill-treatment of thousands of Germans and nationals of occupied countries. These crimes are further particularized in paragraph 11 of this indictment, where is incorporated herein by reference. The defendants … Lautz [and] Rothaug … are charged with special responsibility for and participation in these crimes.150
17. The United States Military Tribunal set the objective test for the imposition of “commission” liability pursuant to Article II(2) of Control Council Law No. 10 for an accused “connected with a criminal plan or enterprise” as follows:
The material facts which must be proved in any case are (1) the fact of the great pattern or plan of racial persecution and extermination; and (2) specific conduct of the individual defendant in furtherance of the plan. This is but an application of general concepts of criminal law.151
The subjective test was stated to be that the accused had “knowledge of an offence charged in the indictment and established by the evidence”152 and “consciously participated in the plan or took a consenting part therein”.153 These requirements are similar to those for imposition of JCE liability in the jurisprudence of the Tribunal.154
18. The Military Tribunal found that the Prosecution had proved the existence of a “ pattern and plan of racial discrimination” to enforce the criminal laws against Poles and Jews.155 After determining that the accused Lautz, the Chief Public Prosecutor of the People’s Court, knew of this plan,156 the Tribunal found that he had authorised indictments charging a number of Poles with high treason for “leaving their places of work and attempting to escape Germany by crossing the border into Switzerland”.157 The Poles were ultimately sentenced to death and executed. On the basis of this evidence, the Military Tribunal concluded that Lautz had consciously participated in the national plan of racial discrimination “by means of the perversion of the law of high treason”,158 and accordingly convicted him of war crimes and crimes against humanity.159 The Tribunal concluded in relation to his responsibility:
We have cited a few cases which are typical of the activities of the Prosecution before the People’s Court in innumerable cases. The captured documents which are in evidence establish that the defendant Lautz was criminally implicated in enforcing the law against Poles and Jews which were deemed to be a part of the established governmental plan for the extermination of those races. He was an accessory to, and took a consenting part in, the crime of genocide.160
19. In similar fashion the Military Tribunal found that Rothaug, the former Chief Justice of the Special Court in Nuremberg, knew of the plan of racial discrimination.161 The Tribunal convicted Rothaug of crimes against humanity for his role in convicting and sentencing to death three Poles and a Jew “in conformity with the policy of the Nazi State of persecution, torture, and extermination of [the Jewish and Polish] races.”162 The Tribunal opined that Rothaug had consciously participated in the plan in the following terms:
The individual cases in which Rothaug applied the cruel and discriminatory law against Poles and Jews cannot be considered in isolation. It is of the essence of the charges against him that he participated in the national program of racial persecution. It is of the essence of the proof that he identified himself with this national program and gave himself utterly to its accomplishment. He participated in the crime of genocide.163
20. The Military Tribunal appears to have imposed criminal responsibility on both accused for their participation in the common criminal plan although they did not perpetrate the actus reus of the crimes of which they were convicted; the actus reus was instead perpetrated by executioners simply carrying out the orders of the court. Nowhere did the Tribunal discuss the mental state of the executioners who carried out the death sentences imposed as a result of the actions of Lautz, Rothaug, and their fellow participants in the common plan, or whether such persons even had knowledge that the death sentences formed part of a plan to pervert the law for the purpose of exterminating Jews and other “undesirables”.
21. In the RuSHA case, the United States Military Tribunal approached the question of the criminal responsibility of the accused Hofmann and Hildebrandt in a similar way. Several officials of the SS Race and Resettlement Main Office (known by the German acronym “RuSHA”) were charged, along with other Nazi leaders, with war crimes and crimes against humanity brought about by means of murder, extermination, enslavement, deportation, imprisonment, torture, and persecutions. Hofmann was the Chief of RuSHA from July 1940 until April 1943. Hildebrandt was Higher SS and Police Leader at Danzig-West Prussia from October 1939 to February 1943, and at the same time Leader of the Administration District Danzig-West Prussia of the Allgemeine SS; thereafter, from 20 April 1943 to the end of the war, he was Chief of RuSHA. The indictment alleged the following common plan—known as the “Germanisation” plan—and steps taken to carry it through:
The acts, conduct, plans and enterprises charged … were carried out as part of a systematic Program of genocide, aimed at the destruction of foreign nationals and ethnic groups, … in part by elimination and suppression of national characteristics. The object of this program was to strengthen the German nation and the so-called “Aryan” race at the expense of such other nations and groups by imposing Nazi and German characteristics upon individuals selected therefrom … and by the elimination of “undesirable” racial elements. This program was carried out in part by (a) Kidnaping [sic] the children of foreign nationals in order to select for Germanization those who were considered of “racial value”; (b) Encouraging and compelling abortions on Eastern workers for the purposes of preserving their working capacity as slave labor and of weakening Eastern nations; (c) Taking away, for the purpose of extermination or Germanization, infants born to Eastern workers in Germany; (d) Executing, imprisoning in concentration camps, or Germanizing Eastern workers and prisoners of war who had had sexual intercourse with Germans, and imprisoning the Germans involved; (e) Preventing marriages and hampering reproduction of enemy nationals; … and (i) Participating in the persecution and extermination of Jews.164
22. The Military Tribunal found that the Prosecution had established that there existed among Hitler, Himmler—the leader of the SS—and other Nazi officials a “two-fold objective of weakening and eventually destroying other nations while at the same time strengthening Germany, territorially and biologically, at the expense of conquered nations.”165 It found additionally that the leadership of RuSHA—and particularly the accused Hofmann and Hildebrandt —adhered to and enthusiastically participated in the execution of this “Germanisation ” plan by effecting, through RuSHA agents, abortions on foreigners impregnated by Germans, punishment for sexual intercourse between Germans and non-Germans, the slave labour of Poles and other Easterners, the persecution of Jews and Poles, and the kidnapping of foreign children.166 In response to contentions by the accused that they did not themselves physically perpetrate any crimes, the Tribunal held that
[i]t is no defense for a defendant to insist, for instance, that he never evacuated populations when orders exist, signed by him, in which he directed that the evacuation should take place. While in such a case the defendant might not have actually carried out the physical evacuation in the sense that he did not personally evacuate the population, he nevertheless is responsible for the action, and his participation by instigating the action is more pronounced than that of those who actually performed the deed.167
23. In spite of the fact that their role was limited to administration, Hofmann and Hildebrandt were held fully responsible for, inter alia, kidnappings and forcible abortions carried out by others.168 In relation to neither the kidnappings nor the abortions did the Tribunal consider and determine the state of mind of the perpetrators.
24. The Military Tribunal also accepted evidence that Kaltenbrunner, an SS official, had issued a decree in 1943 that children born to Eastern women working in Germany, but fathered by German men, were to be stolen and placed in institutions.169 In response to this decree, the RuSHA leadership outlined a suggested course of action for the implementation of the child-stealing programme in a memorandum to Himmler:
If the pregnancy of an alien female worker has been caused by a German man, normally no procurement of abortion is necessary, but an investigation of the racial purity of the mother and the father will be conducted by plenipotentiaries of [RuSHA]. … All children proved to be racially pure will be sent to the children’s institutes, which are to be established for those children who are to be educated as Germans. … Children of impure race … would be handed over to children assembly centers, in order to prevent German children growing up together with foreign children[.]170
Upon Himmler’s approval of these suggestions, Hofmann—who the Tribunal opined was “fully conversant with this atrocious program”—went about issuing instructions for the abduction and transfer of children by RuSHA agents; in the Tribunal’s words, “[t]here can be no doubt that Hofmann actively participated in this criminal program.”171 The Tribunal additionally found that Hildebrandt was “equally guilty with Hofmann in this specific charge” for his knowledge and endorsement of the child-stealing programme, and his issuance of orders that it be carried out.172 No mention is made of the examiners’ and abductors’ state of mind, or whether they agreed with, or knew of, the Germanisation plan.173
25. The Military Tribunal ultimately found that, “[j]udged by any standard of proof, the record in this case clearly establishes crimes against humanity and war crimes, substantially as alleged in the indictment”, in violation of Articles II(b) and (c) of Control Council Law No. 10.174 Reiterating that Hofmann and Hildebrandt actively participated in measures carried out in furtherance of the Germanisation plan “as has heretofore been set forth in detail in this judgment”, the Tribunal concluded that “[t]he evidence establishes beyond any reasonable doubt [the accused’s] guilt and criminal responsibility for the … criminal activities” as alleged in the indictment, including the kidnapping of alien children, forcible abortions, child-stealing, punishment for sexual intercourse with Germans, and the hampering of enemy nationals’ reproduction.175
26. In my opinion, both cases are examples of international tribunals applying international humanitarian law and attributing criminal responsibility for participation in a joint criminal enterprise where there was a close link between the participants in the JCE and the physical perpetrators of the crimes, but where the physical perpetrators’ criminal responsibility was not considered and determined. Having said that, I am mindful of the comment of the Appeals Chamber in its own examination of post-World War II jurisprudence in Rwamakuba that
[t]he post-World War II materials do not always fit neatly into the so-called “three categories” of joint criminal enterprise discussed in Tadic, in part because the tribunals’ judgements did not always dwell on the legal concepts of criminal responsibility, but simply concluded that, based on the evidence, the accused were “connected with,” “concerned in,” “inculpated in,” or “implicated in” war crimes and crimes against humanity.176
Nevertheless, I consider that, although the Justice and RuSHA judgements do not speak in specific terms of “joint criminal enterprise”, the legal elements applied by the Military Tribunal to determine the liability of the accused are sufficiently similar to those of JCE in the jurisprudence of this Tribunal as to constitute valid sources for the ascertainment of the contours of JCE liability.
27. When faced with the task of determining the elements of rape as a violation of the laws or customs of war, the Trial Chamber in Furundzija held that, “to arrive at an accurate definition of rape based on the criminal law principle of specificity …, it is necessary to look for principles of criminal law common to the major legal systems of the world. These principles may be derived, with all due caution, from national laws.”177 By examining national laws on recklessness and dolus eventualis in jurisdictions in the United States, the United Kingdom, Australia, France, Italy, and Germany to ascertain the mental elements of “ordering” under Article 7(1) of the Statute, the Blaskic Appeals Chamber implied that a Chamber may also look to general principles of criminal law to define the scope of a form of responsibility.178 The appropriate process to be followed is illustrated in the Furundzija and Kunarac Trial Judgements. Reference must not be made to one national legal system only—for example, either common law or civil law to the exclusion of the other179—although the distillation of a general principle does not require a comprehensive survey of all legal systems of the world.180 It is also important to avoid “mechanical importation or transposition” from national law into international criminal proceedings.181
28. With regard to civil law, in Germany an accused may be held responsible as a perpetrator (Täter) for using another as an instrument or tool (Werkzeug) to physically perpetrate a crime, regardless of whether the physical perpetrator is himself culpable or is an “innocent agent”, that is, not responsible for the criminal act because, for example, he is a minor or lacks the mens rea required for the crime.182 In France, where two or more persons each perform part of the actus reus of the crime with the requisite intent, they are treated as co-perpetrators (co-auteurs). Where one person uses an innocent agent to commit a crime, or orders another person to commit a crime, even where the second person knows the order is illegal, the first person can be found guilty as if he had physically perpetrated the crime.183 Article 18(1) of the Polish Criminal Code provides:
Not only the person who has committed a prohibited act himself or together and under arrangement with another person, but also a person who has directed the commission of a prohibited act by another person, or taken advantage of the subordination of another person to him, orders such a person to commit such a prohibited act shall be liable for perpetration.184
The Argentine Penal Code imposes the same penalty upon a person who physically takes part in the execution of the actus reus of a crime as upon a person who directly induces the perpetration of the actus reus by another or lends assistance of cooperation “without which the crime could not have been committed”.185 Colombian criminal law defines the “author” of a crime as “he who realises the punishable conduct himself or utilising another as an instrument.”186
29. In countries with a common law tradition, the distinction between “principals” and “accessories” is more nominal than real. Scots law has never distinguished between principals and accessories, nor does it limit the criminal responsibility of a principal to certain forms of agency such as innocent agency or the agency of a person under the age of criminal responsibility. In English law, accessories are “liable to be tried, indicted, and punished” as principal offenders, and the distinction between an accessory and a principal offender is in many cases of little importance.187 Legal reform in other common law systems, moreover, has eliminated the distinction, in terms of degree of culpability, between “principals in the first degree”, such as a physical perpetrator acting with the requisite mens rea, and “accessories before the fact”, such as a person who orders, counsels, encourages or otherwise aids and abets another to commit a crime, but is not present at the commission of the crime. For example, Title 18 of the United States Code, which sets forth the substantive crimes and criminal-procedure rules to be applied by the U.S. federal courts, provides in Section 2:
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.188
The note accompanying Section 2 explains that paragraph (b) was added by Congress in 1951 to
remove all doubt that one who puts in motion or assists in the illegal enterprise or causes the commission of an indispensable element of the offense by an innocent agent or instrumentality, is guilty as a principal even though he intentionally refrained from the direct act constituting the completed offense.189
In the words of a United States Court of Appeals decision applying Section 2(b), “[o]ne acting in such capacity is chargeable as a principal in the crime and punishable accordingly.”190 Australian law recognises the imposition of liability upon an accused for instigating, encouraging, or assisting another to perpetrate the actus reus of a crime;191 moreover, principals in the first degree, principals in the second degree, and accessories before the fact are all liable as principals for the crime committed.192
30. As is evident from these provisions and jurisprudence, a number of national systems that can be regarded as representative of the world’s major legal systems recognise the imposition of liability on an accused for the “commission” of a crime, even where he does not perform the actus reus, as long as his actions in some way cause an element of the actus reus. It is immaterial whether the person who physically perpetrates the actus reus could himself be held responsible for the commission of a crime, or whether this person is an innocent agent who lacks the mens rea required for liability for the crime’s commission. I find these cases to be indicative of a general principle of criminal law, and that this general principle is a further aid to the interpretation and delineation of the contours of JCE.
31. My consideration of the foregoing aspects of the jurisprudence of this Tribunal, international case law, and general principles of criminal law reinforces the conclusion I had already reached with my colleagues: the question whether any accused subject to this Indictment can be found guilty for commission as a participant in a JCE can only be determined when the facts about his involvement in the JCE and his relationship to the physical perpetrators of the crimes involved have been established.193 Only then can a proper determination be made of the question for trial, identified in paragraph 1 above, whether the accused is guilty of commission of a crime through participation in a JCE.
Done in English and French, the English text being authoritative.
Dated this twenty-second day of March 2006
At The Hague
[Seal of the Tribunal]